CURRENT LEGISLATIONPénélope RM2023-02-06T11:57:26+01:00
EVOLUTION OF THE LEGISLATION
The legislation regarding the profession of model and the professional activity of modeling agencies dates from the law n° 90-603 of July 12, 1990.
The provisions regarding kids and children under the age of 16 have remained unchanged since that date.
Those regarding adult models over 16 years old and modeling agencies were amended by Act No. 2011-302 of March 22, 2011, containing various provisions for adapting the legislation to European Union law.
The new terms were specified by a decree in Council of State n° 2011-1001 of August 24, 2011.
This law opens the possibility for modeling agencies located in a State belonging to the European Economic Area to be able to carry out this activity on a temporary and occasional basis on the French territory, provided they have previously declared their activity to the French administration.
It also allows models registered in these same countries to exercise their activity in France, through the provision of services, on a temporary and independent basis.
However, in return, the new regulation provides for a certain number of reporting obligations to which agencies and models from these countries will be subject prior to their interventions and/or services on the French territory.
These obligations are developed in the DGT administrative circular n° 2012-06 of July 26, 2012, the main points of which are recalled below.
“I have been loyal to the SYNAM since its creation.
On a daily basis, among other actions, the union works to harmonize relationships with the professional partners who call on our agencies, and represents us with the administrations whenever there are legislative changes in our profession.
In addition to being very reactive to each request of its members, the SYNAM is at the side of its members at each difficulty encountered, informs us and defends us if necessary.
Most recently, it has mobilized to support its members and represent them with the administrations during the current health crisis, and has fought to defend our interests and preserve our agencies from the economic hazards that are feared for our companies.”
Any natural or legal person whose activity consists of making models available temporarily to users, for a fee, is considered to be operating a model agency. The agency hires and pays models for this purpose.
Article L. 7123-14 of the French Labor Code
The issuance of a model agency license by the administrative authority is subject to conditions determined by regulation.
Article R.7123-8 of the French Labor Code
Any person established on national territory who engages in the placement of models for remuneration must hold a model agency license.
Article L. 7123-11 of the French Labor Code – 3rd paragraph
Model agencies legally established in another Member State of the European Union or part of the European Economic Area (EEA) may carry out this activity on a temporary and occasional basis on national territory, provided they have previously declared their activity to the DIRECCTE the place where the service is to be performed.
For services provided in Paris and the Ile-de-France region, the address for the declaration is:
Direction Régionale des Entreprises, de la Concurrence, de la Consommation, du Travail et de l’Emploi d’Ile de France (DIRECCTE) Unité Territoriale de Paris EESAM 19/21, rue Madeleine Vionnet 93300 AUBERVILLIERS
The documents to be sent are the following (art. R. 7123-12 of the French Labor Code):
the references of the agency’s registration in a professional register in its country of origin,
the name or company name and the address of the place of establishment of the model agency
the full names and home addresses of the agency’s directors,
the designation of the organization or organizations to which the model agency pays social security contributions for its salaried models,
proof of obtaining a financial guarantee in accordance with article L. 7123-19 or proof of obtaining an equivalent guarantee in the country of establishment,
the name or company name and address of the client,
the places, dates, durations and, where applicable, the hours of performance of the service,
and, if necessary, the individual authorization for the employment of children mentioned in article L. 7124-1.
Model agencies established in a third country (outside the EU and EEA) are still required to hold a license to operate in France, including on an occasional and temporary basis. This license will continue to be issued under the same conditions as if they were or were planning to establish themselves in France.
In order to avoid any difficulties, the originator will ensure that agencies or models established in the European Union who come to France to perform temporary and occasional services are in compliance with the declarations and rules provided for in DGT circular no. 2012-06 of July 26, 2012.
Law No. 2016-41 of January 26, 2016 on the modernization of the healthcare system introduced new obligations for model agencies regarding the monitoring of models’ health at work.
SYNAM had negotiated with its employee union partners (CFDT – CGC and FO) and signed on June 1, 2012, extended by decree on October 4, 2016, a national collective agreement on occupational health of model employees.
This agreement only concerns adult models over the age of 16.
The law of January 2016 introduced new standards for medical visits carried out within the SIST (Service Interentreprises de Santé au Travail).
SYNAM had to negotiate with the Ministries of Labor and Health to make it possible to apply the legislation relating to medical monitoring for all adult models over sixteen, regardless of their country of origin.
Following this negotiation, SYNAM drafted a rider to the agreement of June 1, 2012, which was signed on September 21, 2017 by all the employee union partners (CFDT- CGC – FO and UNSA). This rider was extended by order on December 6, 2017.
The medical certificate of fitness to practice the profession of modeling is subject to the application of Article L.7123-2-1 of the Labor Code.
Is considered as operating a model agency, any natural or legal person whose activity consists in providing temporary users, for a fee, with models that it hires and pays for this purpose (Article L. 7123-12 of the Labor Code).
The model agency license is issued for an indefinite period by the Prefect of Paris, regardless of the location and address of the future agency, including for overseas departments. The regional director of companies, competition, consumption, labor and employment of Ile-de-France (DIRECCTE) examines the file and seeks the opinion of the regional director of cultural affairs of Ile-de-France.
The order issuing the modeling agency license is notified to the interested parties and published in the Official Journal of the French Republic (Article R.7123-9 of the Labor Code).
The license may be refused or withdrawn (Article R.7123-14 of the Labor Code).
A K extract or a KBIS extract of the company as well as its statutes,
A curriculum vitae indicating, in particular, the professional experience of the applicant at the date of the application,
The list of permanent employees, delegates of the agency and persons authorized to represent the agency for all or part of its activities, at the agency’s headquarters or in its branches, with the indication, for each of them, of the first names, last names, nationalities, dates and places of birth, personal addresses, professional experience (curriculum vitae) as well as the functions performed within the agency,
A copy of the financial guarantee certificate mentioned in article L. 7123-19 of the Labor Code,
An extract from the criminal record n°2, or any equivalent document, of the applicant for the license, of the company directors and of the managers of the agency,
A note on the conditions under which the agency will carry out its activity, particularly at the geographical level, that also includes the identification of its branches and the professional sectors concerned,
For activities or professions likely to give rise to a conflict of interest as mentioned in article R. 7123-16 of the French Labor Code, a statement indicating, if applicable, the other activities or professions and the corporate offices held by each manager, corporate officer, partner, delegate and employee. The declaration must also specify the address where the activity in question is carried out or the head office of the company for which they are representatives. This declaration is also required in the absence of other activities or corporate mandates (Article R.7123-10-1 of the French Labor Code).
The financial guarantee can only result from a guarantee commitment made by a mutual guarantee company, a collective guarantee organization, an insurance company, a bank or a financial institution authorized to give guarantees (Article L.7123-20 of the French Labor Code).
The amount of the financial guarantee is a minimum of 15,200€. The amount can be revised each year (Article R.7123-21 of the French Labor Code).
The file must be sent by registered mail with acknowledgment of receipt to the following address:
Direction Régionale des Entreprises, de la Concurrence, de la Consommation, du Travail et de l’Emploi d’Ile de France (DIRECCTE) Unité Départementale de Paris EESAM 19/21, rue Madeleine Vionnet 93300 AUBERVILLIERS
Model agencies legally established in another European Union Member State or party to the European Economic Area agreement may carry out this activity on a temporary and occasional basis on French territory, provided they have previously declared their activity (Article L.7123-11 3rd paragraph).
Article R.7123-12 of the Labor Code specifies:
“Model agencies legally established in another Member State of the European Union or party to the Agreement on the European Economic Area that wishes to carry out this activity on a temporary and occasional basis on national territory shall send to the Direction Régionale des Entreprises, de la Concurrence, de la Consommation, du Travail et de l’Emploi d’Ile de France (DIRECCTE) the place of performance of the service and, prior to it, a declaration including the following information:
The references of the agency’s registration in a professional register in its country of origin,
The name or company name and the address of the place of establishment of the modeling agency,
The first names, last names and home addresses of the agency’s directors,
The designation of the organization or organizations to which the modeling agency pays social security contributions,
Proof of obtaining a financial guarantee in accordance with Article L. 7123-19 of the French Labor Code or proof of obtaining an equivalent guarantee in the country of establishment,
The name or company name and address of the user,
The place, date, duration and, if applicable, the hours of performance of the service,
If applicable, the individual authorization for the employment of children as mentioned in Article L. 7124-1 of the Labor Code.
For services provided in Paris and the Ile-de-France region, the declaration must be sent to the following address:
Direction Régionale des Entreprises, de la Concurrence, de la Consommation, du Travail et de l’Emploi d’Ile de France (DIRECCTE) Unité Départementale de Paris EESAM 19/21, rue Madeleine Vionnet 93300 AUBERVILLIERS
The modeling agency must then be considered as an agency established in France.
Article R.7123-10-2 of the French Labor Code specifies that a modeling agency legally established in another Member State of the European Union or party to the Agreement on the European Economic Area must submit the documents mentioned in article R.7123-10-1 in support of its license application. If this agency has obtained a title of equivalent effect in its country of origin, it shall produce a copy of this title and shall be exempted from producing those documents mentioned in article R. 7123-10-1 that it was required to present as part of the procedure for the issue of this title.
Article L.7123-14 of the Labor Code states:
“(…) When an agency is legally established in another Member State of the European Union or party to the agreement on the European Economic Area, account shall be taken of the equivalent requirements to which it is already subject in the State of domicile.“
FOR MODEL AGENCIES LOCATED IN A THIRD COUNTRY (EXCLUDING EU & EEA)
Model agencies established in a third country (outside the EU and the EEA) are required to set up an agency in France and hold a French license in order to carry out their activities in France, including on an occasional and temporary basis.
In order to avoid any difficulties, the principal will ensure that agencies or models established in the European Union who come to France to perform temporary and occasional services are in compliance with the declarations and rules provided for in the DGT circular no. 2012-06 of July 26, 2012.
Is considered as exercising an activity of model, even if this activity is exercised only occasionally, any person who is in charge:
either to present to the public, directly or indirectly by reproduction of its image on any visual or audio-visual support, a product, a service or an advertising message,
or to pose as a model, with or without subsequent use of his or her image (Article L.7123-2 of the Labor Code).
N.B.: The distinction between the model and the performer is based on the nature of the performance and this difference is based on the notion of interpretation.
According to the law, “the performer is the person who represents, sings, recites, declaims, plays or performs in any other way a literary or artistic work, a variety show, a circus act or a puppet show” (Article L.212-1 of the Intellectual Property Code).
The jurisprudence considers that it is not enough to appear in a film to become a performer: the one who is simply filmed in the exercise of his professional activity is not a performer (Cass. 1st civ., 13 Nov. 2008, n° 06-16.278).
French models and French residents have the status of employees.
Any contract by which a person secures the services of a model in exchange for payment is presumed to be an employment contract (Article L.7123-3 of the French Labor Code).
The presumption of the existence of a contract of employment subsists regardless of the method and amount of remuneration as well as the qualification given to the contract by the parties (Article L.7123-4 of the Labor Code).
Any employment contract concluded between a modeling agency and each of the models it employs must be in writing and include a precise definition of its purpose (Article L.7123-5 of the French Labor Code).
The interministerial circular DGT/DPM n°2007-19 of December 20, 2007 specifies that it follows from these provisions that a model cannot be considered as a self-employed worker and be paid on invoice.
They cannot be considered as volunteers either, even they’re minors, as soon as there is a subordination link or a remuneration given in return for their performance.
It cannot be accepted either that the minimum remuneration of the models is not made in a monetary way.
The absence of remuneration as well as payments in kind are excluded.
Consequently, the fact that the presentation service is organized by a non-profit organization, such as a trade association, within a commercial or promotional framework, cannot in itself allow the application of article L. 7123-4 of the Labor Code to be ruled out.
The circular of the Direction Générale du Travail (DGT) n° 2012-06 of July 26, 2012 indicates the incompatibility between the activity of the model and the auto-entrepreneur status.
The auto-entrepreneur scheme is applicable only to self-employed workers benefiting from the micro-enterprise tax regime and falling under the social security schemes for self-employed workers.
It is not open to activities whose exercise implies a connection to the general social security system.
Among these, article L. 311-3, paragraph 15, of the Social Security Code makes it compulsory for models covered by the provisions of articles L. 763-1 and L. 763-2 (now L. 7123-2 to L. 7123-4 and L. 7123-6) of the Labor Code to be affiliated to the general social security scheme.
Consequently, models who are employees cannot claim to be under the auto-entrepreneur system and be employed under this status.
For each service performed by a model, the agency must establish:
A contract for the provision of services addressed to the user client, a copy of which is given to the model (Article L.7123-17 of the French Labor Code),
An employment contract that must be given to the model at the latest within 2 working days following the provision of the service (Article R.7123-1 of the French Labor Code).
Each service generates an employment contract whose duration is precise and limited in time.
In case of use of the image of the model by the beneficiary of the service, are established:
1. A civil mandate of representation
According to annex 4 of the collective agreement IDCC 2397 and article 14 of the collective agreement IDCC 2397 which is a civil mandate of common interest subject to the provisions of articles 1984 to 2000 of the civil code.
By this compulsory document, the model mandates the agency to promote his or her career, to proceed with the transfer, exploitation or reproduction of the recording of his or her presentations, to draw up the corresponding documents, to ensure the follow-up, to collect the proceeds of the rights and to assume the fiscal and social obligations incumbent on the agency. It is signed by the agency and the model.
The present mandate of common interest is concluded for an initial duration of one year maximum as from the day of the signature of the two parts, renewable by tacit agreement.
It may be terminated by giving notice within two months prior to its expiration.
Article 16-3 of the collective agreement IDCC 2397 specified in 2020 the following terms:
“Prior to any negotiation of image rights, will be concluded in writing the civil mandate of representation provided by Article 14. The wording of the mandate may vary according to the wishes of the parties. A model recommended by the signatory parties is attached in Appendix 4. Any mandate other than the one recommended must, however, include all the clauses set out in Article 14 and Articles 16-3-1, 16-3-2 and 16-3-3.” (Endorsement n° 13 of February 26, 2019 extended by order of March 19, 2020).
A version of the civil representation mandate exists in English.
2. A contract for the transfer of image rights
It is established between the model agency and the user of the model’s image (or his or her representative).
Article 16-5 of the collective agreement IDCC 2397 states:
“The contract for the transfer of rights will mention the campaign concerned, the product, the supports and media, the duration and the territory of exploitation.”
In accordance with Article L.7123-6 of the Labor Code, this transfer concerns the proceeds of a sale or the exploitation of the recording of the presentation of the model. The initial service will therefore be identifiable, either by reference to the contract of provision, or by any other precise reference to an employment contract.
The mannequin will be informed in advance of the amount due to him or her and will sign at least one copy of the said contract.
The presumption of salaried status provided for in Articles L. 7123-3 and L. 7123-4 of the French Labor Code does not apply to models who are recognized as service providers established in a Member State of the European Union or in another State party to the Agreement on the European Economic Area where they usually provide similar services and who come to France to exercise their activity, through the provision of services, on a temporary and independent basis (Article L. 7123-4-1 of the French Labor Code).
The circular of the General Directorate of Labor n° 2012-06 of July 26, 2012 specifies:
The conditions listed for the lifting of the presumption of salaried employment are cumulative:
the model must be recognized as a service provider established in a Member State of the European Union or a State party to the Agreement on the European Economic Area and registered in a trade register or an equivalent register,
the model’s activity in France must be temporary and independent,
the model who meets these conditions must inform the DIRECCTE of the place where the service is performed of the organization(s) to which he or she pays the social security contributions relating to the exercise of his or her activity in the country where he or she is established by sending the A1 form, which attests to the social security legislation applicable to its holder (Article R. 7123-12-1 of the French Labor Code).
In addition, French modeling agencies must have in their possession the model’s tax residence certificate for the current year.
Unlike models employed by a French modeling agency, a self-employed model who is a national of an EU or EEA country cannot demand that the remuneration for his or her services be paid on the 7th of the month following the month in which the services were provided (Article 13 of the collective agreement IDCC 2397).
Since 2016, the medical surveillance of models has been regulated by law n° 2016-41 of January 26, 2016 and, consequently, by the French Labor Code (Article L.7123-2-1).
SYNAM had not waited until 2016 to sign, with its partners and the representative employee unions a national collective agreement on occupational health for model employees (Agreement of June 01, 2012 extended by order on October 4, 2016).
This agreement was supplemented by a rider, negotiated by SYNAM with the Ministries of Labor and Health, signed on September 21, 2017 by all the representative partners, to allow for an adaptation of the law so that it is applicable to all models working punctually in France regardless of their country of origin. This rider was extended by order dated December 6, 2017.
All French models and residents in France, living in Paris or the Paris region, must be monitored by an occupational physician from the CMB (Centre médical de la Bourse), who will issue their certificate of fitness valid for 2 years.
All models who work for agencies located in the region must have their medical examination at a center that has an agreement with the CMB.
All models who are nationals of an EU, EEA or third country must come to France with their certificate of fitness, which must be written in French or English by their doctor in their country of origin and must be less than two years old.
Two particular cases can occur:
A foreign model arrives in France without his or her medical certificate: the agency can then use a general practitioner in town for the medical examination.
A foreign model arrives in France to work with a company of the KERING or LVMH groups and his or her certificate is not less than 6 months old (time required by the two groups): his or her agency can then use a general practitioner for a new medical examination of aptitude.
The drafting of the certificate is governed by article L.7123-2-1 of the Labor Code, which does not require the doctor to include the notion of BMI on the certificate of fitness.
Performers who work through a modeling agency for services as a model can ask the occupational physician to have a medical certificate with the double professional aptitude.
All appointments made by modeling agencies at the CMB must be honored and models must make every effort to respect the appointment time.
In case of cancellation less than 48 hours before the scheduled appointment, a penalty will be charged to the agency.
FOR CLIENTS BENEFITTING FROM THE SERVICE OF MODELS AND USERS OF THEIR IMAGE
SYNAM has a list of licensed French agencies which is regularly updated. It can be communicated on request via email (firstname.lastname@example.org).
2. If the model is under sixteen years old, the client must ensure that the agency has, in addition to its license, a specific approval dating less than one year.
3. A client may ask the agency for various documents (URSSAF – AUDIENS certificate, license and possibly approval decree, financial guarantee certificate, etc.) but it is important to ensure that these requests are not repeated several times a year.
4. If the agency is not French, the client must ensure that the agency has declared its temporary and occasional activity to the French administration.
A contract of availability (CMAD) must be concluded in writing between the user and the agency before the mannequin is provided (article L.7123-17 of the French Labor Code).
For models under 16 years of age, the remuneration is not based on their working time but on the time they are present.
As regards to adult models over 16 years of age, the UDA-AACC-SAM-UNAM protocol signed in January 2000 specifies in its article 9:
“The model’s working day is between five hours and eight hours of presence at the filming location or at the shooting location.
The time required for make-up and hairstyling is included in the duration of the service provided above”.
According to Article L.7123-18 of the Labor Code:
“During the duration of the service, the user is responsible for the conditions of performance of the work in accordance with the legal provisions and conventional stipulations applicable to the place of work.
For the application of these provisions, the conditions of work execution include, in a limited way, the provisions relating to the duration of work, night work, weekly rest and public holidays, health and safety at work, work of pregnant women, women who have just given birth or who are breastfeeding, children and young workers.”
A contract for the transfer of the reproduction rights of the image must be negotiated, established and signed between the agency representing the model and the user before the first advertising use of the model’s image.
Any use without prior transfer is considered abusive.
Three criteria cited in the UDA-AACC-SAM-UNAM protocol (page 10) must appear on the transfer contract and accounting documents relating to the use of the model’s image:
the duration of exploitation,
the modes of exploitation,
the geographical areas of distribution.
The sale of the initial service includes only the rights for the French press and mail-order catalogs, whatever the nature of the medium, for a maximum period of 12 months from the date of the first publication, this use having to take place within a maximum period of 6 months from the date of the initial service.
The client will be required to communicate to the agency the date of the first publication.
Any transfer of editorial photos, whether free of charge or for a fee, to other French and/or foreign press titles or within the same group is prohibited.
Finally, the UDA-AACC-SAM-UNAM protocol reminds us on page 11:
Remuneration for the reproduction rights of the model’s image is due on the first publication and is payable in cash.
The agency and the model retain ownership of the model’s personal rights to their image until the corresponding invoice has been paid in full.
The existence of any clause restricting the freedom of a model to work for advertisers, whether competing or not, or to assign reproduction rights to these advertisers, must be the subject of a specific contract.
As a last resort, the user (advertiser) will be considered responsible for payment.
The exploitation of the recordings of the model’s performance through a photo library or an image bank is strictly forbidden.
The casting sheet is a document given to model agencies to define the criteria for finding a model.
The casting sheet is often mistakenly considered by the clients of modeling agencies (advertisers, productions, communication agencies and casting directors) as a pre-contract whose content must necessarily be accepted without the slightest negotiation by the modeling agencies even before the casting takes place.
However, this is legally incorrect: the casting sheet cannot be considered as having a pre-contractual value if it is not the result of a negotiation, of a meeting of consents and if it does not meet the contractual rules of formalism.
It must therefore be clearly understood by all that, under these conditions, this document is strictly informative, without any pre-contractual value that could produce legally binding effects for the modeling agencies.
However, the clients of the modeling agencies consider the casting sheet as a document that must be rigorously followed by the modeling agencies, even if the representative unions of the four entities (advertisers, productions, communication agencies and modeling agencies) have never met to discuss this subject.
In order for model agencies to meet their clients’ expectations as well as possible, the casting sheet must at least be sufficiently detailed and complete, which implies in particular specifying all the conditions desired by the client as well as the uses that will be made. However, very often, modeling agencies are presented with a fait accompli when they send a transfer contract that includes uses that were never included in the casting sheet.
We therefore draw the attention of clients and their subcontractors to the fact that they should not issue contracts containing conditions of use of the images of the models that differ from those announced, before the casting, via the casting sheet. If this is not deemed possible or acceptable by the clients and their subcontractors, then it is best not to issue a casting sheet.
Recommendation: Some clients – or their intermediaries – systematically propose additional and different uses in the rights assignment contracts than those announced in the casting sheet for the same remuneration. In this case, we recommend that the model agencies do not sign the casting sheets but only the assignment contracts previously negotiated with the future users of the models’ images.
In general, it is forbidden to organize a casting and to make a child under 16 years old work on Sundays, public holidays and at night between 8 p.m. and 6 a.m.
The employment and selection of a child who is not attending school and who is working as a model may only be authorized on two days per week, excluding Sundays (Article L.7124-7 of the French Labor Code).
During school periods, the employment of a school child engaged in modeling and the preliminary selection for this activity may only be authorized on weekly rest days other than Sunday (Article L.7124-8 of the French Labor Code).
The maximum daily and weekly working hours are determined by the regulations according to the age of the child, and for schoolchildren also according to the school period or school vacations (Article R.7124-27 et seq. of the Labor Code).
Reminder: Children must attend school from the age of 3.
The medical examination prior to the employment of a model under the age of 16 is paid for by the agency and is carried out by a pediatrician or a general practitioner.
The validity of the medical certificate issued varies according to the age of the child (Article R.7124-9 of the Labor Code).
This examination is renewed every 3 months for children under 3 years of age, every 6 months for those between 3 and 6 years of age and every year for those over 6 years of age.
If the doctor’s opinion is negative, the child cannot be employed.
When a child under the age of 16 registers with a licensed and approved modeling agency, the agency gives him/her and his/her legal guardians an explanatorynotice in exchange for a receipt (Article R.7124-15 of the French Labor Code).
As for an adult model, the agency must, for each performance of a model under 16 years old, establish the following documents
A contract for the provision of services addressed to the user client, a copy of which is given to the model and his or her legal representatives (Article L.7123-17 of the French Labor Code).
An employment contract that must be given to the mannequin and its legal representatives, at the latest within 2 working days following the provision of the service (Article R.7123-1 of the French Labor Code).
Each service generates an employment contract whose duration is precise and limited in time.
When registering the child in a specialized modeling agency, it is proposed to the signature of the legal representatives a civil mandate of child representation, rider to the collective agreement IDCC 2397, No. 3 of December 13, 2012 extended by order of June 3, 2013, which is a civil mandate of common interest subject to the provisions of Articles 1984 to 2000 of the Civil Code.
In the event of use of the image of a child model under the age of 16 and image rights invoiced, a slip for payment of rights under Article L7123-6 of the Labor Code is established by the agency and sent to the legal representatives.
Reminder: A child model under 16 years of age is not paid according to his or her working time but according to the time spent in the agency.